Criminal trials during Covid-19: my first experience of the Nightingale Courts
February 4, 2021
In September I started a trial. An actual criminal trial. One that was listed for 6-8 weeks with multiple defendants in a pandemic at a Nightingale court. Despite our initial pre-Covid estimate, it concluded in mid-December, so it was (we think) one of the longest, if not, the longest running trial since Covid began. The time it took is no criticism. I felt like we all deserved a medal at the end of it; the judge, the jury, the lawyers, the court staff, the defendants. Everyone worked incredibly hard to keep the wheels turning.
The time it took is not in itself unusual. Unexpected issues regularly occur in trials that simply cause them to end up taking more time than you had originally envisaged, except that this time it was due to Covid. In our one trial we had a number of instances of having to deal with Covid, including positive tests, suspected symptoms and individuals being tracked and traced at possibly the most inconvenient times during the process, resulting in evidence being given by some via a video link from home and a lot of stopping and starting. Many of us ended up taking a Covid test at some stage during those weeks and the uncertainty undoubtedly took its toll on us all over time.
So how did the court work? Did we feel safe? For my part I felt safe. I felt happy to come to work in an environment where everyone was committed to keeping the risk as low as it could be. Masks were worn everywhere except in the court room, although jurors were permitted to wear their masks in the court room if they wished. We all had our own designated socially distanced desk (which felt a little like going back to an exam hall), our individual sanitiser and our own plastic gloves in case evidence had to be physically handled. Oratory skills had to be adjusted to ensure that everyone in the room could see and hear, and closing speeches were given from the witness box. We had designated conferences rooms for each team and the building was spotless thanks to the tireless and consistently upbeat efforts of the court cleaners who spent their days cleaning and re-cleaning, with the court room being sanitised at the close of each day.
It was also an ‘iPad’ case which meant that nearly all of the evidence was viewed electronically. Everyone had their individual iPad which could be annotated as they went along, and the on-hand tech team helped us all to navigate through our varying degrees of technical limitations. iPad trials are something I have encountered many times before for cases with large amounts of evidence (normally the larger fraud cases) but it really came into its own for this one.
Our court sitting hours were slightly amended to ensure that jurors did not have to travel at peak times. We were always at court early (against the common misconception that we roll up at 10am and finish at 4.30pm!) but it meant that we had proper time to have client conferences (before and after court) and time to agree / discuss points with our opposition. It really did save much time in the long run and is something many of us advocate for in a post-pandemic future. Not once did we need to request extra time from our Judge to deal with a point without the jury, which from my own experience is relatively unheard of in a long case.
There were some days when we could not appear in court due to Covid concerns or we were awaiting Covid test results, but we were all able to meet virtually via a video link to provide updates and deal with other trial administration. Was there a formal protocol on ‘what to do if you suspect someone in the trial has Covid’?; simply put, no there was not. It wasn’t easy to navigate through. It was also, to put it lightly, disappointing to find out that Covid tests were offered via HMCTS to court staff and jurors when needed, but not to any of the lawyers (both prosecution and defence) or the defendants who had to go through the usual slower route of the Government portal – seemingly someone forgot that the trial couldn’t carry on without us.
All that aside, from my own experience it felt like it worked. Having since been to other non-Nightingale courts it is stark how different the facilities are, and not in a good way (a problem that we were already acutely aware of pre-Covid with many old and underfunded court buildings). It is also clearly difficult in some court locations to stick to proper social distancing despite best efforts. As we all know, we desperately need to keep the criminal justice system going. The current backlog (as has been recently reported) is simply untenable. We desperately need more Nightingale courts and we desperately need to create safer environments for all of those who enter the court system.